in Re a R Warshefski

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re A. R. WARSHEFSKI, also known as A. R. FOR PUBLICATION
PIECHOTTE, Minor, January 21, 2020
9:10 a.m.
JOSEPH PIECHOTTE,
Petitioner-Appellee,
V No. 346965
St. Clair Circuit Court
Family Division
DEBRA S. WARSHEFSKI, LC No. 18-000482-NC
Respondent-Appellant.
Before: K. F. KELLY, P.J., and BORRELLO and SERVITTO, JJ.
BORRELLO, J.
Respondent, mother of AR Warshefski, a minor, appeals as of right the trial court’s order
granting AR Warshefski’s petition to change his name. For the reasons set forth in this opinion,
we affirm.
I. BACKGROUND
On September 14, 2018, AR Warshefski filed a petition to change his name. On October
31, 2018, respondent filed an answer to the petition requesting that the trial court deny the
petition. The trial court held a hearing on the petition on December 10, 2018. AR Warshefski
explained that he was seeking to change his surname because all of the family who he maintains
a relationship with has the surname “Piechotte,” he lives with his father, Joseph Piechotte, and
does not speak to respondent. Additionally, AR Warshefski stated that he would like to have the
same name as his half siblings because he is the only one in his household with a different last
name. After a review of the petition, the trial court appointed a lawyer guardian ad litem for AR
Warshefski, who testified that AR Warshefski is 14 years old and his decision appears to be
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logical and genuine. The trial court found that the statutory basis in MCL 711.1 had not been
established, but ultimately granted the petition stating:
I agree that the statutory basis under the applicable statute, MCL 333.28721 has
not been established. There has been no contact whatsoever between Ms.
Warshefski and [AR Warshefski] for apparently the last three years. But the
second part of the test that the Legislature has deemed appropriate is for them to
say that also there would have to be a failure for her to provide regular and
substantial support, or to comply with the support order. The testimony from both
these parties at the time I saw everybody the last time was that she had been
supporting [AR Warshefski], paying her child support the way it’s required. And
so the statutory basis is not established.
However, in Michigan there are common[-]law rights. There is caselaw that
recognizes that this statute does not eliminate the common law with regard to
name changes. So this Court also has the ability to make a name change if I
believe that it would be in [AR Warshefski’s] best interest for me to do so.
This appeal then ensued.
II. SUBJECT-MATTER JURISDICTION
On appeal, respondent brings two challenges to the trial court’s ruling. Respondent’s
first argument on appeal is that the trial court’s subject-matter jurisdiction was limited to the
specific requirements of MCL 711.1, hence, the trial court did not have subject-matter
jurisdiction to rule on a common law name change. For the reasons set forth below, we find no
merit in this argument.
We first note that respondent did not cite any authority in support of this argument. “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give issues cursory treatment with little or no
citation of supporting authority.” Houghton ex rel Johnson v Keller, 256 Mich. App. 336, 339-
340; 662 NW2d 854 (2003) (citations omitted). “An appellant’s failure to properly address the
merits of his assertion of error constitutes abandonment of the issue.” Id. However, in order to
facilitate a final decision in this matter, we will address the issue despite respondent’s failure to
properly support her argument.
The issue of whether a court had subject-matter jurisdiction is a question of law which
this Court reviews question of law de novo. Atchison v Atchison, 256 Mich. App. 531, 534; 664
NW2d 249 (2003). It is well established that “ ‘[c]ircuit courts are courts of general
jurisdiction.’ ” In re Harper, 302 Mich. App. 349, 352-353; 839 NW2d 44 (2013), quoting Papas
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It appears the trial court misspoke when it referenced MCL 333.2872 and, rather, intended to
refer to MCL 711.1. MCL 333.2872 concerns the procedure for changing the surname of a child
on a birth certificate.
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v Gaming Control Bd, 257 Mich. App. 647, 657; 669 NW2d 326 (2003). “Subject-matter
jurisdiction ‘is the right of the court to exercise judicial power over a class of cases, not the
particular case before it.’ ” Teran v Rittley, 313 Mich. App. 197, 205; 882 NW2d 181 (2015),
quoting Grebner v Oakland Co Clerk, 220 Mich. App. 513, 516; 560 NW2d 351 (1996). It is the
court’s power to preside over the type or kind of case pending, not the power to determine the
particular cause of action or particular facts before the court. Id.
Under MCL 600.605, the Michigan Legislature vested subject-matter jurisdiction in the
circuit courts as follows:
Circuit courts have original jurisdiction to hear and determine all civil claims and
remedies, except where exclusive jurisdiction is given in the constitution or by
statute to some other court or where the circuit courts are denied jurisdiction by
the constitution or statutes of this state.
It is presumed that the circuit courts have subject-matter jurisdiction “unless jurisdiction is
expressly prohibited or given to another court by constitution or statute.” In re Wayne Co
Treasurer, 265 Mich. App. 285, 291; 698 NW2d 879 (2005). MCL 600.1021(1)(d) grants the
family division of the circuit court with sole and exclusive jurisdiction over cases involving a
change of name as provided in chapter XI of the Probate Code, MCL 711.1 to MCL 711.3. MCL
711.1(1) grants the family division of the circuit court the authority to enter an order to change
name.
This Court addressed a similar challenge to the circuit court’s subject-matter jurisdiction
to grant an adoption outside of the Probate Code in Usitalo v Landon, 299 Mich. App. 222, 228;
829 NW2d 359 (2012). In Landon, the appellant argued that the circuit court lacked subject-
matter jurisdiction to grant a same-sex adoption because the Michigan Adoption Code did not
provide for same-sex adoption. Id. at 229. The appellant furthered argued that the circuit court
only had subject-matter jurisdiction to preside over adoptions granted pursuant to the Probate
Code. Id. This Court held that the appellant’s understanding of subject-matter jurisdiction was
incorrect because “subject-matter jurisdiction concerns only a court’s authority to exercise
judicial power over broad classes of cases and does not consider particular cases with in the
broad class.” Id. at 230.
Respondent similarly argues that because MCL 600.1021(1)(d) grants the family division
of the circuit court with jurisdiction over cases involving name changes granted pursuant to the
Probate Code, the trial court lacked subject-matter jurisdiction to grant a common law name
change. However, subject-matter jurisdiction concerns the court’s authority to hear a broad class
of cases. As was the case in Landon, respondent’s argument conflates subject-matter jurisdiction
with a court’s exercise of its jurisdiction. The trial court’s interpretation of whether petitioner
maintained common law rights following a finding that MCL711.1 was inapplicable had no
effect on whether the court continued to have subject-matter jurisdiction because a common law
name change is within the same class of cases as a name change granted pursuant to the Probate
Code.
This Court has previously held that MCL 711.1 does not abrogate or supersede the
common law. In Piotrowski v Piotrowski, 71 Mich. App. 213, 217; 247 NW2d 354 (1976), this
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Court held: “In Michigan, as in most states, a statute authorizes procedures by which a court can,
upon petition, change the name of any person. MCLA 711.1; MSA 27.3178(561). Such change
of name statutes do not abrogate or supersede the common law. To the contrary, they affirm the
common law right and afford an additional method by which a name change may be effected as a
matter of public record.”
It is uncontested that subject-matter jurisdiction over common-law name changes has not
been expressly conferred in any other court by the Michigan Legislature. It is further
uncontested that circuit courts have never been expressly prohibited from granting common law
name changes. Because MCL 711.1 does not abrogate or supersede the common law, the trial
court has subject matter jurisdiction to hear and grant petitions for a name change under both
MCL 711.1 and the common law. Accordingly, respondent is not entitled to relief on this issue.
III. NAME CHANGE BASED ON COMMON LAW
Next, respondent argues that the trial court erred in granting the petition based on the
common law because the trial court did not have the authority to “sua sponte” grant the petition
under the common law after finding that the requirements in MCL 711.1 were not met.
This Court reviews a trial court’s grant of a legal name change pursuant to MCL 711.1
for an abuse of discretion. Rappleye v Rappleye, 183 Mich. App. 396, 399; 454 NW2d 231
(1990). “An abuse of discretion occurs when the trial court chooses an outcome falling outside
the range of principled outcomes.” Rettig v Rettig, 322 Mich. App. 750, 754; 912 NW2d 877
(2018). However, the specific question of whether the trial court could properly grant a minor’s
name change under the common law, despite the petition being filed pursuant to MCL 711.1, is a
question of law. This Court reviews questions of law de novo. Eickelberg v Eickelberg, 309
Mich. App. 694, 698; 871 NW2d 561 (2015).
As previously stated, this Court has long recognized two methods to effectuate a name
change under Michigan law. Piotrowski at 216. An individual may adopt any name he or she
wishes, without resort to any court or legal proceeding, provided it is not done for fraudulent
purposes, under the common law. Id. Under the common law, and in the absence of fraud, a
minor may also adopt any name he or she wishes provided they are of sufficient age and maturity
to make an intelligent choice. Rappleye, 183 Mich. App. at 398.
Alternatively, an individual may petition the court for a name change pursuant to MCL
711.1. Piotrowski, 71 Mich. App. at 216. MCL 711.1(1) provides that the family division of the
circuit court may enter an order to change the name of an individual who has been a resident of
the country for at least one year and petitions the court in writing. The petition must demonstrate
a “sufficient reason for the proposed change and that the change is not sought with a fraudulent
intent.” MCL 711.1(1). If the petitioner is a minor, the petition shall be signed by the minor’s
mother and father jointly or by one of the minor’s parents if there is only one legal parent
available to give consent. MCL 711.1(5).
If the minor is 14 years old or older, written consent to change name must be signed by
the minor, in the presence of the court, and should be filed with the court before an order
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changing the name of the minor is entered. MCL 711.1(5); MCR 3.613(B). MCL 711.1(7)
provides, in relevant part:
[t]he name of a minor may be changed pursuant to subsection (5) or (6) with the
consent or signature of the custodial parent upon notice to the noncustodial parent
as provided in supreme court rule and after a hearing in either of the following
circumstances:
(a) If both of the following occur:
(i) The other parent, having the ability to support or assist in supporting the child,
has failed or neglected to provide regular and substantial support for the child or,
if a support order has been entered, has failed to substantially comply with the
order, for 2 years or more before the filing of the petition.
(ii) The other parent, having the ability to visit, contact, or communicate with the
child, has regularly and substantially failed or neglected to do so for 2 years or
more before the filing of the petition.
At the time of filing the petition, AR Warshefski was 14 years old. AR Warshefski
signed the petition as the petitioner and Piechotte signed as the parent/guardian of AR
Warshefski. After a hearing on the petition, the trial court had AR Warshefski sign a written
consent form in the presence of the trial court in accordance with MCL 711.1(5) and MCR
3.613(B). As previously indicated the trial court then found that “the statutory basis under the
applicable statute, [MCL711.1] has not been established.”
Understandably, respondent does not take issue with the trial court’s holding that the
statutory requirements of MCL 711.1(7) were not met because, while respondent failed to visit,
contact, or communicate with AR Warshefski, she had maintained her support obligations. What
respondent does take issue with is the trial court’s finding that petitioner maintained a common
law right to a name change irrespective of the filing of a petition citing to MCL 711.1. However,
contrary to respondent’s assertions, this Court previously recognized that MCL 711.1 does not
abrogate or supersede the common law, a holding which we deem important to reaffirm: “In
Michigan, as in most states, a statute authorizes procedures by which a court can, upon petition,
change the name of any person. MCLA 711.1; []. Such change of name statutes do not abrogate
or supersede the common law. To the contrary, they affirm the common law right and afford an
additional method by which a name change may be effected as a matter of public
record.” Piotrowski, 71 Mich. App. at 216.
Having established that petitioner maintained a common law right to a name change, the
next issue we consider is whether the trial court provided a proper basis for granting the petition.
In deciding whether to grant the petition, the trial court employed a “best interest test.” While
we note the dearth of case law on this point, this Court has stated that the trial court should look
to the best interest test in deciding whether to grant a minor a legal name change. In
Rappleye 183 Mich. App. at 399, this Court held: “[W]e cannot conclude on this record that the
trial court abused its discretion by determining that it is in the minor child’s best interest to allow
her to continue using the name Gregory, if she so desires . . . . In the present case, the trial
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court’s decision was clearly based on the facts and on what was right and equitable under the
circumstances.” Recognizing this Court in Rappleye did not explicitly adopt the best interest
test, this Court did so in Garling v Spiering, 203 Mich. App. 1, 4; 512 NW2d 12 (1993), stating:
“Although admittedly this Court in Rappleye did not formally adopt the ‘best interest’ test for the
purpose of resolving these types of disputes, we clearly approved of its use by our trial courts. In
light of the specific issue raised in this case, we now hold that parental disputes regarding a
child’s surname should be resolved in accordance with the best interests of the child.”
In accord with our holding in Spiering, here, the trial court employed the best interest test
as its basis for granting the petition.
The trial court began its best interests test by pointing out that neither parent was able to
agree on how to resolve the issue of AR’s proper last name, and given the level of animosity that
each parent still holds against the other, absent court intervention, the issue would never be
resolved. The trial court appointed a lawyer guardian ad litem to interview the minor and inform
the trial court of those discussions. The guardian ad litem testified that after interviewing AR, it
was clear that AR wanted the name change because he identified with and lived with members of
his father’s family, all of whom had the last name of Piechotte. The trial court also found, after
interviewing AR that given the length of time since he last had any contact with his mother---
approximately three years---and the dearth of contact with his mother’s family, AR identified as
a member of the Piechotte family rather than a member of the Warshefski family. The trial court
also found that AR lived in a household where everyone but him had the last name of Piechotte.
The record also reveals that the trial court gave all parties to these proceedings ample
opportunities to state their particular reasons for granting or denying the petition. To ensure no
undue influence was exerted over the minor child, the trial court appointed a lawyer guardian ad
litem who testified before the trial court that there was no evidence AR was being manipulated or
coerced into bringing a petition for a name change. From this record, we cannot assign any error
to the trial court’s factual findings, and we note that respondent has failed to establish a legally
sufficient basis for a finding by this Court that the trial court committed any factual error.
Similarly, in its legal rulings, the trial court correctly held that MCL 711.1 was
inapplicable because at the time of the filing of the petition, respondent was providing support
for AR. The trial court next found, based on prior decisions by this Court, that statutory
enactments such as MCL 711.1 did not abrogate common law rights to a name change.
Piotrowski, 71 Mich. App. at 216. Next, by employing the best interest test in reaching its
decision to grant the petition, the trial court followed prior rulings of this Court. Spiering, 203
Mich. App. at 4. On this record, we find no legal error. Accordingly, respondent is not entitled to
relief.
Affirmed. Petitioner having prevailed in full may tax costs. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
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